The Metron CaseThe Metron Case & Criminal LiabilityWhat does it mean to your company?

What actually happened?

What was done wrong?

On what counts could the prosecution prove criminal negligence?

What consequences arose out of this case?

What does the Metron Case mean to your company?

Agenda

Involves workers on a balcony restoration project in Toronto on December 24, 2009

5 workers + supervisor climbed onto a swing stage, which almost immediately collapsed

5 out of 6 men fell 14 floors to the ground

◦ 4 of the 5 workers died as a result of injuries from the fall

◦ The 5th worker survived but suffered serious injuries

The 6th worker was uninjured

The Metron Case: What happened?

The swing stage that collapsed

◦ Appeared new

◦ Had no markings, serial numbers, identifiers, or labels regarding the stage’s maximum capacity

◦ Arrived without any manual, instructions, or other product information (e.g., design drawings prepared by an engineer)*

The Metron Case: What happened?

*OHSA requires that all equipment arrive with manuals and other necessary materials, as specified by s.139(5)

The swing stage hadn’t been properly constructed

◦ It wouldn’t have been safe for even 2 workers

◦ Only 2 lifelines were available for the swing stage

It was “the normal and usual practice on the project for only two workers to be on the swing stage at any time.”

Only 1 of the 6 workers had used the lifelines – he didn’t fall.

The Metron Case: What went wrong?

3 of the 4 deceased workers (including the supervisor) had marijuana in their systems

◦ The levels of marijuana were consistent with having recently ingested the drug

The Metron Case: What went wrong?

Metron’s supervisor failed to take reasonable steps to prevent bodily harm and death

1. He directed and/or permitted 6 workers to work on the swing stage (along with various construction materials)

He knew or should have known that it was unsafe to do so

2. He directed and/or permitted 6 workers to board the swing stage knowing that only 2 lifelines were available (and he permitted that only 1 of those lifelines was actually used)

3. He permitted persons under the influence of drugs to work on the project

Metron was criminally negligent

The offence took place on December 24, 2009

The individual was a supervisor with associated work directing-based job duties

(As seen on the previous slide) The supervisor acted wrongfully on several accounts

The supervisor had also ingested marijuana and he permitted 6 workers onto a swing stage that was built for 2

4 out of 6 workers died and 1 worker was severely injured

Metron Construction is a recognized company, therefore, it is considered an “organization”

The people injured were all employed by Metron Construction and they were completing a work-related project

The supervisor was authorized to be working at the high-rise apartment complex, and all workers were taking his direction

The supervisor had ingested marijuana and he permitted 6 workers to be on the swing stage at once without proper safety restraints

The supervisor should have• …Normally known to and

made use of the proper safety lifelines;

• …Allowed the proper number of people on the swing stage; and

• …Not been ingesting an illegal substance

The Crown sought a $1,000,000 fine against Metron

Metron pleaded guilty, but asked for a fine of $100,000

◦ Real cause for accident was faulty construction of the swing stage

◦ Prior, the corporation had “good character”

◦ $1M would send Metron into bankruptcy and never pay fine

The Court decided upon $200,000

◦ Acknowledged likelihood of bankruptcy if Metron was to pay $1M fine

◦ Metron had no previous criminal record

◦ Agreed with the Crown that $100K didn’t properly fit the crime

The Consequences

Joel Swartz, the owner of Metron, pleaded guilty under the OSHA, as he…

◦ Failed to ensure written instructions in workers’ own languages

◦ Failed to ensure proper training

◦ Failed to ensure the swing stage was not defective

◦ Failed to ensure the swing stage was not overloaded

► Swartz was fined $22,500 + 25% victim surcharge, per victim

► Total fine = $112,500

Metron’s Owner was liable

So What?Criminal Code & the Metron Case

C-45 and Criminal Liability

What does the Metron Case mean for your business?

Metron Construction was prosecuted on OH&S Criminal charges

◦ These are different from OHSA violations

◦ These charges come from C-45

The Metron case is considered the highest profile OH&S Criminal prosecution to date

The Metron Case and Criminal Code

Canadian Criminal Code amendment

◦ National in scope

◦ Took effect on 3/31/2004

New section of the Criminal Code (Section 217.1)

◦ “Everyone who undertakes, or has the authority, to direct how another person does work or performs a task” must take “reasonable steps” to protect the person who does the work or another person against bodily injury arising out of the work.

“Reasonable steps”

◦ Decided one case at a time by the courts

◦ Compliance with local OHSA laws (at minimum)

◦ Industry standards, best practices, etc.

What is C-45?

Criminal Liability can result from:

◦ Failure to follow OHS laws

◦ Failure to ensure workplace health and safety

Conviction results in…

◦ High fine (maximum $100,000)

◦ Jail

◦ If someone is killed, no maximum on the amount of fine or time of jail sentence

Criminal negligence is only proven from a show of total disregard or indifference to workplace health and safety

What is C-45?

Companies are liable under C-45 for convictions against:

◦ Their employees

◦ Their contractors

◦ Other agents not on company’s payroll

Liability isn’t based on a person’s title (e.g., “employer,” “supervisor,” or “contractor”)

◦ Based on whether the person directs or has authority to direct how the work is done

Who’s liable?

Who directs or has authority to direct how the work is done? They…

◦ Have control over who can do a job;

◦ Have control over what tools or methods are used;

◦ Train the people who actually perform the job; and/or

◦ Have authority to stop work because it’s unsafe.

Note: A person, like a worker, who just decides to direct work even if he doesn’t have the authority to do so is liable under C-45

Who’s liable?

Show due diligence:

◦ Have an effective OHS program in place

◦ Prove that you protected workers

◦ Prove compliance with OHS laws

By showing due diligence, you can make it impossible for the prosecutor to convict you of criminal negligence under C-45

◦ Save your reputation, time, and money

◦ Most Importantly: Keep your workers safe!

Know the laws (both OHS and Criminal Code)

What should your company do to avoid the same mistakes as Metron?

This Court decision set a precedent for fines against senior officers under OHSA◦ Maximum fine is $25,000 per C-45 charge◦ Additionally, 25% victim surcharge fees

“Senior Officer” is a broad term◦ Has come to include front-line supervisors (e.g., Metron)

The Crown didn’t insist upon incarceration◦ I.e., jail sentences were and will continue to be rare under OHSA

Fines charged to the guilty party will be determined with consideration upon the party’s financial situation

Court decisions in light of C-45

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